In summary: “The trial court found Ms. Fiveash failed to present any evidence to establish that Defendants intentionally destroyed evidence with the purpose of depriving her of its use at trial. Louisiana jurisprudence has held summary judgment based on subjective facts like intent is rarely appropriate. The trial court incorrectly relied on self-serving and conclusory affidavits that Defendants offered in support of their motion to conclude that no genuine issue of material fact exists as to intent. Based on the factual allegations and supporting evidence presented, reasonable minds may disagree as to Defendants’ motive and intent in failing to preserve the evidence in this case.”

More specifically: “As the party opposing the motion, Ms. Fiveash may defeat summary judgment by direct or circumstantial evidence to establish that she will be able to satisfy her evidentiary burden at trial. We note that because of the inherent difficulties of proving intent, strict proof of fraud is not required to show intent to deceive. The intent to deceive must be determined from the attending circumstances which indicate one’s knowledge of wrongdoing and his recognition of the materiality thereof, or from circumstances which create a reasonable assumption that he recognized the materiality of the misrepresentations. Here, the trial court stated that ‘plaintiff contends that the repairs made to the step in question were not just cosmetic in nature but she presents no evidence to establish the fact that defendant intentionally destroyed evidence for the purpose of depriving opposing parties of its use.’  Pursuant to Quinn, we find Ms. Fiveash’s amended petition set forth sufficient allegations of intentional destruction of evidence. Ms. Fiveash alleged that it was because of the ‘specific assurances’ by Defendants that the step would be repaired to its ‘identical condition’ that she agreed to permit the repair ahead of the November 24, 2014 expert inspection. Emails between counsel indicate that, beginning in September 2014, Ms. Fiveash made repeated requests for an inspection by her expert witness. Email correspondence also shows that Defendants gave counsel for Ms. Fiveash the option of inspecting the step immediately. Yet, counsel for Defendants indicated to Ms. Fiveash’s counsel that there was no need to expedite her expert’s inspection because the repairs were merely ‘cosmetic in nature.’ Ms. Fiveash asserts that but for these assurances, she would not have agreed to the step’s repair prior to her expert witness’ inspection….  Ms. Fiveash also cites her expert witness’ findings from his inspection as evidence of the step’s altered condition. After Mr. Owens’ inspection of the repaired step, he opined that the condition of the step changed. He stated that ‘the step depicted in the before photographs was much worse than the step’ he inspected on November 24, 2014. Mr. Owens also found the threshold nosing was ‘more likely than not, 1/4 to 1/2 inch higher than the Mexican tile walking surface’ following the November 10, 2014 repairs. Moreover, Ms. Fiveash avers that although Defendants claimed the step repair was urgent, they waited ten days before performing the repair. Ms. Fiveash asserts that if the repair was ‘merely cosmetic in nature,’ then the repair could not have been so urgent that it could not wait another fourteen days when Ms. Fiveash’s construction expert could perform an inspection.”

Reversing the summary judgment, Judge Love quoted the trial court’s reasoning, as follows: “Plaintiff asks this Court to infer bad faith from the fact that defendants claimed the step repair was urgent, but then proceeded to wait ten days to repair it. What this Court finds persuasive is defendants’ argument that the step sustained damages in October 2014, and needed to be repaired because it created a safety concern” (emphasis supplied by court of appeal). The Fourth Circuit disagreed. “The trial court incorrectly accepts as fact the very question it inappropriately seeks to answer. Whether Defendants intentionally destroyed evidence of the step’s condition is a question for the trier of fact. We find the trial court erred by weighing the evidence and determining what evidence it deemed ‘persuasive.’ The only question to determine on partial summary judgment was whether sufficient evidence was presented from which a jury may reasonably disagree as to whether Defendants intended to destroy evidence of the step’s condition to deprive Ms. Fiveash’s use of it at trial….  Here, the only evidence offered specific to the element of intent is the affidavits of the party seeking to prove that there was no intentional destruction of evidence. The veracity of the sworn statements is a question of fact that inevitably requires credibility determinations, weighing of evidence, and drawing legitimate inferences from the facts — all of which are duties that only the trier of fact may perform. Moreover, the other supporting evidence Defendants offered fails to prove that no genuine issues of material fact exist.”
Fiveash v. Pat O’Brien’s, No.2015-1230 (La. App. 4th Cir. 9/14/2016), 2016 WL 4820387.